Eminent domain describes the power of the government to take or damage private property. The constitutions of the U.S. and the state of North Dakota limit when and how government may use that power. Generally speaking, the government may only take private property for a valid “public use” and the property owner must receive just compensation for their loss.

Understanding what constitutes a legitimate “public use” is essential. The U.S. Supreme Court issued a decision in 2005 that defined “public use” for purposes of the Fifth Amendment. The case, Kelo vs. New London, became infamous in North Dakota, and ultimately sparked the citizens of our state to amend the North Dakota Constitution to provide individuals greater private property rights.

Suzy Kelo was a homeowner in Connecticut who lived in an area the city of New London wanted developed for a conference hotel, restaurant, shopping facilities and a housing development. When she refused to sell her home to the private developer, the city condemned and took her property using eminent domain. The property was then turned over to the private developer. She and others challenged the city’s actions in court.

The case was ultimately decided by the U.S. Supreme Court, which held that the U.S. Constitution was not violated. The court, however, invited the states to provide greater protection through legislation or through state constitutions. North Dakota’s reaction to this decision was loud and unequivocal. We amended our constitution to prevent this sort of action by limiting what constitutes a “public use or purpose.” Article 1, Section 16 of the North Dakota Constitution was amended to provide that a public use or public purpose may not include: “… public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health.” Consequently, our state constitution prohibits a city in North Dakota from taking or damaging private property when the underlying purpose is economic development.

Fargo’s plan to dam and divert the Wild Rice and Red rivers would flood 54,000 acres and take the private property of more than 1,000 North Dakota residents. Fargo’s leaders rejected a reasonable plan for permanent flood protection that did not call for the dam and reservoir. Instead, they insisted on the present plan and boldly stated their reasons: development of the flood plain for Fargo’s future development. Evidence of the “economic development purpose” behind Fargo’s leaders’ decision can be found throughout the materials published by the U.S. Army Corps, as well as in the public statements of the Fargo mayor and his confederates.

The plan to dam the area’s rivers will be found to violate the constitutional rights of the people Fargo’s leaders have chosen to sacrifice. Meanwhile, Fargo continues to spend millions of tax dollars trying to make these dams a reality. How long will the Diversion Authority continue to push this illegal budget-busting boondoggle while people in need of reasonable flood protection remain at risk? Gov. Dalrymple and the ND Legislature should make sure that any future money given to Fargo for flood protection is being put to good use, not squandered on endless planning for a project that should not, and in all likelihood, cannot be built.